Abstracts
What is Conflict? Difference and Uniformity in Private International Law by Victoria Garin
Private International Law (PIL) or Conflicts of Laws deals with clashes between legal systems: when a private relationship has an international element, PIL determines which law and which judge, of the several, competing ones, will apply to that case. But, what if legal systems were not at the centre? Think of a contract between two persons living in different countries: are controversies arising from that contract to be handled as problems of the world economy and of clashing jurisdictions, or should they be treated as matters of that contract and between those two persons instead?
In this presentation, I argue that PIL should focus on individuals in order to be just. A strict focus on legal systems causes injustices of three types: first, it arbitrarily reduces persons to their legal systems, denying their autonomy; second, it can lead to unfair results, since it is blind to the particularities of each case; third, it leads to parochialism and exoticism of foreign legal cultures, for it works on the assumption that clashes are inevitable and agreement is impossible. Instead, I propose to reconceive PIL as Kantian. A Kantian PIL would rely on an idea of universal duties towards one another, regardless of each person’s legal system. Under this view, a just PIL would be one that focuses on the direct subjects of PIL, the individuals and their horizontal relationships, emphasising similarities rather than differences.
Ordering legal plurality: A comparative study of judicial law-making in consumer contract law by Dominik Dworniczak
The thesis deals with the classic problem of judicial law-making in consumer contract law from a particular perspective. Judiciary is portrayed not contrary to the legislator but alongside him, namely as actors ordering pluralistic legal reality. The first chapters of the thesis outline the methodological concept of the thesis (narrative approach), in order to then apply it to the jurisprudence of the CJEU (as a common denominator for comparative research for jurisdictions within the EU) and two selected national jurisdictions, i.e. Poland and France.
Two levels of narratives are presented within the thesis. The first is about how a certain social problem is solved or how this solution is achieved (the so-called hierarchy narrative, hierarchical reasoning) and the second concerns solutions. Through a comparative approach and the presentation of the hierarchy narrative of the CJEU, the two highest courts, the Cour de Cassation and the Polish Supreme Court (Sad Najwyzszy), are compared in terms of their substantive narratives such as traditional narratives (e.g. general clauses) or constructs such as transparency of contractual clauses.
Intellectual Property Licenses in Cross-Border Insolvencies: A case study of global innovation in knowledge-based industries by Guillem Gabriel Pizarro
As the licensing phenomenon of Intellectual Property (‘IP’) rights has been growing in our global economy, the insolvency treatment of those agreements has taken on greater importance. IP policy operates on an ex ante, aspirational, perspective, seeking to promote investment in research and development. Freedom of contract plays a central role in maximizing the potential value of IP. Insolvency law, in turn, applies an ex post view seeking to maximise the value of debtor’s assets to repay creditors or to shed onerous contracts to restructure the business. It, thereby, overrides, if necessary, the freedom of contract. In this context, policy makers have failed to adapt insolvency laws towards IP challenges. If there is a specific regulation concerning IP, this is mainly regarding the rights themselves and not their surrounding legal instruments: licenses. Few are the countries with a specific regulation on licenses and, when there is such, it becomes too complex to advance the national result, even without involving international elements. But most countries have not even had a debate on this and operate per inertia the general contractual rules applied in insolvency. As a result, some interesting questions arise: What’s the impact of this heterogenous legal framework in a cross-border context? How relevant is insolvency for cross-border licensing activity? Do we need a specific regulation for the issue? If so, what type of solution must be sought?